U.S.A v. Segundo
| Decision Date | 16 November 2010 |
| Docket Number | Case No. 4:10-cr-0397 |
| Parties | UNITED STATES OF AMERICA, v. JOSE LUIS GONZALEZ SEGUNDO, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court is Defendant's motion to suppress prior deportations and motion to dismiss indictment (Doc. No. 15). Upon considering the motions, all responses thereto, the testimony and oral argument in hearings before the Court, and the applicable law, the Court finds that Defendant's motions must be granted.
Mr. Gonzalez Segundo is charged with one count of illegal reentry in violation of 8 U.S.C. §§ 1326(a), (b)(1). (Doc. No. 1.) This charge stems from Mr. Gonzalez Segundo's reentry into the United States after removal subsequent to a conviction for criminal possession of a controlled substance. Mr. Gonzalez Segundo is alleged to have re-entered the country without obtaining the consent of the Attorney General or Secretary of Homeland Security to reapply for admission into the United States. (Id.)
Mr. Gonzalez Segundo now seeks to suppress his prior removals and dismiss the Indictment on the ground that his prior removals were legally invalid. At a hearing on these motions on September 17, 2010, Mr. Gonzalez Segundo testified. The AUSA did not present witness testimony at this hearing, but offered to submit testimony from an Immigration and Customs Enforcement ("ICE") agent relating to ICE's general practice in expedited removal proceedings, though not Mr. Gonzalez Segundo's expedited removal proceeding specifically.1(Transcript of September 17, 2010 hearing ("9/17/10 Tr.") at 29:24-30:3.) In addition, both Mr. Gonzalez Segundo's counsel and the AUSA submitted exhibits into evidence relating to Mr. Gonzalez Segundo's removal proceedings and his subsequent re-entry into the United States. Defendant's Exhibit A was Form 1-851, Notice of Intent to Issue a Final Administrative Removal Order. Government's Exhibit 1 was a Record of Sworn Statement in Affidavit Form, which documented an interview of Mr. Segundo Gonzalez by an ICE officer on January 26, 2009. Government's Exhibit B was a Form 1-213, Record of Deportable/Inadmissible Alien, which contained a record of ICE's encounter with Mr. Gonzalez Segundo on January 26, 2009. On October 21, 2010, the Court heard oral argument from counsel. The AUSA again offered to submit testimony from an ICE agent regarding ICE's normal course of practice, and Defendant's counsel waived any further evidentiary hearing. (Transcript of October 21, 2010 hearing at 4:21-25, 11:23-12:7.) The facts obtained from Mr. Gonzalez Segundo's testimony and the exhibits are as follows:
Mr. Gonzalez Segundo, born in Mexico, came to the United States at the age of six or seven years with his mother.2 (9/17/10 Tr. at 4:12-5:5.) They settled in McAllen, Texas. (Id. at 5:6-9.) Mr. Gonzalez Segundo has lived in and around McAllen since his arrival in the United States, except for absences corresponding to his deportations. (Id. at 6:22-7:7.) He has five U.S. citizen children who were born in Texas and live around McAllen. (Id. at 7:8-17.)
Mr. Gonzalez Segundo stopped regularly attending school in the third grade and began working alongside his mother picking fruit. (Id. at 5:10-6:4.) He attended school only sporadically thereafter and did not graduate from high school. (Id. at 6:5-10.) Mr. Gonzalez Segundo does not read or write English and understands minimal spoken English. (Id. at 6:11-12, 11:16-22, 23:21-25, 24:10-14.) With respect to Spanish, Mr. Gonzalez Segundo possesses some reading and writing ability. (Id. at 6:13-21.)
In 2001, Mr. Gonzalez Segundo was convicted of a count of possession of a controlled substance and sentenced to a term of imprisonment in the Texas Department of Criminal Justice ("TDCJ"). (Id. at 7:18-21; Def. Exh. 1 at 1.) Under Fifth Circuit law at the time, a conviction for felony drug possession was considered an "aggravated felony" under the Immigration and Nationality Act ("INA"). Mr. Gonzalez Segundo was placed into removal proceedings under INA § 238(b), which provides for the expedited removal of noncitizens convicted of aggravated felonies. (Def. Exh. 1 at 1.) Noncitizens placed into expedited removal proceedings pursuant to INA § 238(b) are issued a Form 1-851, Notice of Intent to Issue a Final Administrative Order. This form consists of two pages. (Def. Exh. 1 at 1-2.) The first page possesses identifying information about the individual, factual allegations, notice of the charges against the individual, and a description of the individual's rights and responsibilities, including the right to be represented by counsel, the 10-day period in which the individual may rebut the charges against him, the right to petition for judicial review within 14 days after the final order of removal is entered, and the option to waive such appeal. (Id. at 1.) The second page consists of a certificate of service confirming that the Form 1-851 was served upon the individual named on the first page, a signature line for the individual to acknowledge receipt of the form, a portion where an individual can indicate that he wishes to contest the charges against him, and a portion where the individual can waive his rights to rebut and contest the charges, the right to petition for judicial review, and the 14-day period of execution of the final removal order. (Id. at 2.)
While serving his sentence for the 2001 conviction at a TDCJ facility, Mr. Gonzalez Segundo was interviewed by an INS officer. (9/17/10 Tr. at 9:1-10.) The INS officer spoke to Mr. Gonzalez Segundo in a hallway for approximately three to four minutes. (Id. at 9:11-24.) Mr. Gonzalez Segundo stated that the INS officer began speaking to him in English, but switched to Spanish after Mr. Gonzalez Segundo told him that he did not understand. (Id. at 23:21-25, 24:1214.) The INS officer proceeded to speak to Mr. Gonzalez Segundo in a mixture of Spanish and English because the INS officer did not speak sufficient Spanish. (Id. at 23:23-24:18.) Mr. Gonzalez Segundo testified that the INS officer did not advise him of his right to have an attorney, did not ask him whether he wanted an attorney, and did not explain his right to appeal or ask if he wanted an to appeal. (Id. at 9:19-10:14.) Mr. Gonzalez Segundo testified that the INS officer showed him only the second page of Form 1-851, but not the first page of this form. (Id. at 8:6-21.) He testified that the INS officer told him that, by signing the form and agreeing to deportation, he would be released quickly. (Id. at 10:2-3, 12:10-11, 12:21-25.) Mr. Gonzalez Segundo signed his name to the portion of page 2 of Form 1-851 in which he waived his rights to rebut and contest the charges, to file a petition for review of the final removal order, and the 14-day execution period of the final removal order. (Id. at 8:12-13, 10:15-17.) He testified that he could not read the English-language text appearing next to the two checkboxes acknowledging the waiver of rights, nor did the INS officer translate this text into Spanish.3 (Id. at 10:18-11:7.)
Mr. Gonzalez Segundo was issued a final administrative removal order on April 1, 2002. He was subsequently deported from the United States on April 22, 2002.
(9/17/10 Tr. at 16:15-17; Doc. No. 15, Exh. B.) Upon his reentry to the United States, Mr. Segundo encountered immigration officials and, on May 14, 2003, was issued a Form 1-871, Notice of Intent/Decision to Reinstate Prior Order, that reinstated his April 1, 2002 removal order. (9/17/10 Tr. at 16:18-20; Doc. No. 15, Exh. B.) He was again deported. He reentered the United States in 2008 and was encountered by ICE officers in January 2009, leading to his present indictment for illegal reentry. (Govt. Exh. B.)
Federal Rule of Criminal Procedure 12(b) allows the Court to hear at the pretrial stage any defense that may be determined without a trial of the general issue. A court should not dismiss an indictment if it alleges every element of the offense. See United States v. Guzman-Ocampo, 236 F.3d 233, 236 (5th Cir. 2000). However, indictments for illegal reentry under 8 U.S.C. § 1326 are subject to dismissal where the underlying deportation proceeding, which serves as an element of the criminal offense, was not conducted in conformity with due process and "effectively eliminate[d] the right of the alien to obtain judicial review" of the deportation proceeding. United States v. Mendoza-Lopez, 481 U.S. 828, 839 (1987).
The Fifth Circuit has interpreted the Mendoza-Lopez decision in order to formulate three requirements for a successful collateral attack upon a prior removal order in a prosecution for illegal reentry under 8 U.S.C. § 1326: (1) the prior hearing was "fundamentally unfair"; (2) the hearing effectively eliminated the right of the individual to challenge the hearing by means of judicial review of the order; and (3) the procedural deficiencies caused the individual "actual prejudice." See United States v. Lopez-Vasquez, 227 F.3d 476, 483 (5th Cir. 2000).
In 1996, Congress codified Mendoza-Lopez in 8 U.S.C. § 1326(d). Section 1326(d) mandates that, in addition to a demonstration of fundamental unfairness and deprivation of judicial review, an individual must exhaust "any administrative remedies that may have been available to seek relief against the [removal] order." If the deportation order is successfully suppressed, it cannot be used to establish the element of prior deportation for the purposes of an 8 U.S.C. § 1326 prosecution.
Mr. Gonzalez Segundo collaterally attacks his April 1, 2002 removal order on the grounds outlined in Mendoza-Lopez, Lopez-Vasquez, and 8 U.S.C. § 1326(d). Specifically, Mr. Gonzalez Segundo claims that the expedited removal leading to his April 1, 2002 removal order was fundamentally unfair because: (a) it was based on an erroneous application of the law,...
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